DWP say that ability to work is irrelevant to an ESA decision

Have a client (an NHS worker) who has been dismissed for ill health after a full 12 months sickness (SSP followed by ESA APPLICATION)

Insufficient ponts on the WCA so ESA refused.

The papers for medical retirement pension have recently come through. These state clearly that he is not capable of his current job and also state that he is not capable of any conceivable job. This was medically aproved by ATOS - would you believe.

Whilst there are considerable points of dispute on individual descriptors, and the ESA appeal can progress on those issues - I am puzzled at the DM’s response to the work dissmissal and medical pension benefits award. The DM states that it is nothing to do with ESA which is a functional ability test and implies that ability to work is not relevant.

I have a (distant) memory that commissioners decisions in more than one case commented to the affect that Incapacity tests should always be interpreted in light of how they affected the ability to work or not.

Can anyone point me to these decisions and of course, any in similar vein since ESA was introduced?

I have a similar case. Cl is former postman, who developed DVT in both legs, and was referred to medical assessment, carried out by ATOS, which found him incapable of work of any kind and reccomended termination of employment on medical grounds. Cl then claimed ESA, and was asessed by ATOS to have scored 0 points at WCA (would be able to mobilise 50m using self-propelled wheelchair)!!! Needless to say we are appealing.

It is pretty clear that ATOS are in the business of producing reports tailored to the needs of whoever is paying them, rather than based on objective assesements or the application opf common sense.

The assessment for ESA is called the Limited Capability for Work Assessment. This implies that capability for work is a pretty important part of what is being assessed. If it is just a functional assessemnt, why imply otherwise in its title?

on the issue of atos and differing decisons for different clients, i have been recently talking to some cwu reps and hearing about this and it maybe that the union at some level of its structures will collate evidence on this and take the issue up as i have suggested to them. so do keep evidence on hand and i will keep you posted

in the meanwhile, not much help to your issues, but the individuals should ask under FOI for all records ATOS holds on them to see if anything interesting is generated in emails and correspondence with the HR officers were they got dismissed.

I think where the DM is coming from is that ESA has nothing to do with the claimants CHOSEN occupation (ie the job that he has just been medically retired from), rather than work related activity as a whole.
Might have been a typo at his/her end.
This unfortunately is correct. If you have been trained to do one job and have been doing it for 40 years then its tough if your ill health stops you from doing that particular job as you can do summat else instead. It would help if Atos did their examinations properly as i am sick of some of the blatantly inaccurate stuff written on ESA85 reports. My brothers ESA85 stated he was ok as he brushed his hair every morning, so upper limb function was not compromised. This actually helped at tribunal as he is as bald as a coot and the judge dismissed the ESA85 as being unreliable. If they are going to make stuff up they should at least be clever about it!

Like the case of the guy I saw in IB days who was described as “normal build” and “normal gait”. When he arrived at the Tribunal he must have weighed at least 25 stone and walked as a quadruped with two sticks, moving one stick, one foot, and so on, leaning forward onto the sticks (think the giraffes in the Lion King, only heavier). The rest of the report looked like rubbish after that.

derek_S - 01 March 2012 01:37 PM

Have a client (an NHS worker) who has been dismissed for ill health after a full 12 months sickness (SSP followed by ESA APPLICATION)

Insufficient ponts on the WCA so ESA refused.

The papers for medical retirement pension have recently come through. These state clearly that he is not capable of his current job and also state that he is not capable of any conceivable job. This was medically aproved by ATOS - would you believe.

Whilst there are considerable points of dispute on individual descriptors, and the ESA appeal can progress on those issues - I am puzzled at the DM’s response to the work dissmissal and medical pension benefits award. The DM states that it is nothing to do with ESA which is a functional ability test and implies that ability to work is not relevant.

I have a (distant) memory that commissioners decisions in more than one case commented to the affect that Incapacity tests should always be interpreted in light of how they affected the ability to work or not.

Can anyone point me to these decisions and of course, any in similar vein since ESA was introduced?

The Decision Maker has a point, ESA is an arbitary criteria.  However, the fact that he has been declared unfit for work must be be assessed with all the other evidence to decide whether the client meets the arbitary criteria.  An example of how abritary the critieria is that clients being unable to read and write through dyslexia will not get them any points.